Global Capitalism and Law

Launched in 2015 as a Buffett Institute “Big Ideas” project, our Global Capitalism and Law research group investigates the political, social, legal, and normative underpinnings of successful and politically sustainable local, national, and global markets.

I have a number of projects that focus on global capitalism and law.

Ruling the Global Economy: Why is Money so Different from Trade?
A book project with article spin-offs (with Stephen C. Nelson)

Framed as an investigation of divergent legalization in the global regulation of money and trade, this project creates a global history of the current system of global economic governance. Unique elements of this project include: 1) We integrate global governance developments in the regulation of money and trade, two issues areas that are functionally linked yet they have been institutionally (and some would say dysfunctionally) divided between the IMF and the World Trade Organization. These two issue areas have also become siloed areas of study, which is to say that trade experts know little about the governance of money, and visa versa. 2) We investigate both decisions made and not made by examining proposals offered yet not acted upon.  We thus see non-decisions–choices to eschew a more legalized or internationally institutionalized form of global governance– as equal in importance to decisions that are made.  3) In uniting siloed trade and monetary global governance developments, we are studying global economic governance as a regime complex. Global structural challenges, such as decolonization, the Cold War, and major economic crises, affected both domains, and there are connector issues such as concerns about balance of payments which lead challenges in one domain (e.g. monetary instability, overvalued currencies etc) to reverberate in other policy domains (e.g. trade). 4) We think about how uncertainty, unknowables, and past concerns shape present and future decision-making. Our account therefore highlights contingencies in choices made, and how decisions and non-decisions in one period of time shapes actions and non-actions at later periods of time.

Global Governance and the Problem of the Second Best
Articles co-authored with Cristina Lafont (Philosophy)

The problem of the second best identifies pitfalls of using normative ideals as a reform guide.  Institutional reforms designed to move in the direction of a first-best ideal can lock in dynamics that generate outcomes that are worse than the unreformed second-best system. To avoid such an ‘approximation trap,’ we advocate second-best theorizing that includes ideal and deviant elements.  Second best strategizing also needs normative guides and floors, since normative theory aims for an improved world. One thus needs to defend certain ideals.  Yet for other aspects, compromises may be necessary or allowed.  For now, we illustrate the problem of the second best by considering the World Trade Organization where we defend ideal elements (multilateralism, transparency and contestation) and deviant elements (affordable non-compliance, and the right to replace the current system through a constructive vote of no-confidence). We suggest that second-best theorizing is a very different task than ideal theorizing, and it may run counter to the global constitutionalist project.  More generally, second best theorizing involves identifying ideals worth protection, deviations that may be necessary evils for the moment, and collective decisions to step back or abandon (if only for now) fundamental ‘acquis’—bodies of laws and agreements that may be seen as progress towards an ideal yet that have lost important political support.

The Politics of Backlash in Comparison
A special issue and book project (with Michael Zürn, Wissentschaftzentrum Berlin)

Backlash is a theme I have long investigated in the context of international courts. This project brings moves beyond existing discussion of backlash politics to think about whether there is something distinct and general about backlash politics. With Michael Zürn, we put together a group of diverse political scientists to review a broader set of literatures and issues with the goal of exploring if there is something distinct about a politics of backlash.  Our two workshops helped us develop a definition of backlash politics that includes three necessary conditions: 1) a retrograde objective; 2) extraordinary goals, methods and tactics; and 3) reaching the threshold of entering public discourse. These necessary elements bring with them frequent companions, including: emotional appeals, rose-colored nostalgia, and negative sentiments such as anger and commitment; the extraordinary objectives often inspire taboo breaking; and when the threshold level of entering public discourse is reached, backlash politics also often leads to the reshaping of institutions through either formal means (e.g. rewriting policies and process to alter future trajectory of politics) or informally (e.g. repurposing or reinterpreting existing rules and processes).

A special issue of the British Journal of Politics and International Relations (2020) will theorize further about backlash politics, developing the composite elements and offering illustrations from around the world. This project will be expanded into a book project which will allow deeper empirical investigations, including studies that go further back in time. The project intentionally unites the subfields of American politics, comparative politics, international relations, race and identity politics, and normative theory.  We also mix senior and junior scholars, underrepresented scholars, and American and European based scholars.

Legalizing International Economic Dispute Resolution: A contractual or rule-of-law approach?
A book chapter for the World Trade Forum, 2019, Bern Switzerland

There are three primary ideal-types through international economic systems make agreements and manage disputes about these agreements. The private contract model lets businessmen create mutual agreements so long as these agreements adhere to generalized boiler-plate legal contract forms.  The interstate contract model lets states negotiate framework international legal agreements.  As international legal agreements, the option of domestic/private adjudication of disputes is generally precluded. Instead, states can choose arbitration or an inter-state dispute settlement system such as adjudication in front of the ICJ, the WTO, NAFTA, SADC, Mercosur etc. These are dispute-settlement systems where the primary goal is to resolve a dispute.The multilateralism model creates a regional or global system of economic laws that are binding upon all members. These laws are not contracts so much as they are common rules, binding on states and firms, to be interpreted by impartial multilateral arbiters that are tasked with ensuring that the law is respect. These agreements can only be adjudicated within the multilateral system, and there is usually a peak legal body which has final say over the meaning of the relevant economic law. This book chapter focuses on the ideal types, and the trade-off choices that each of these ideal types presents. I will argue that there is an inherent trade-off between a contracting versus a rule-of-law approach to global economic law, and that choice about dispute settlement systems reflect this trade-off.  In essence, one can either adopt a transaction cost approach where the primary goal is to facilitate trade with the fewest transaction costs (and thus to maximize the objective of efficiency), and a rule of law approach where the public obligations of global economic law are given greater weight. At stake in the choice is whether we believe that states mostly get in the way.  Should we prefer a system in which businesses govern trade (a libertarian perspective that has many adherents, and that can result in a world in which economic interests trump all other values). Or should we prefer a system in which legislatures try to balance the needs of business against other public-oriented goals? Most governments try to say they are prioritizing efficiency and the public good, yet the choice of dispute settlement in some respects belies such a claim.

From Empire to Multilateralism:  Has Anything Changed?

A lead article for ICon (to appear in 2021), this essay work with global history accounts on the law of empires, with the goal of figuring out how empires used global economic law.  It will then examine the fundamental shift that happened from 1930-1948. Considering how the GATT developed over the next 40 years, it will ask what, if anything, changed in how global economic rules are constructed.